Salama v MIBP - [2016] FCCA 540

FEDERAL CIRCUIT COURT OF AUSTRALIA

SALAMA v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 540

Catchwords:
MIGRATION – Subclass 155 (Resident Return) visa – cancellation – review of decision of Migration Review Tribunal – whether notice of intention to cancel visa complied with the requirements of the Migration Act 1958 (Cth) – applicant’s description of relationship status – application dismissed.

Legislation:

Marriage Act 1961 (Cth), s.88D

Migration Act 1958 (Cth), ss.5F, 101, 104, 107, 108, 109

Minister for Immigration & Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30
Minister for Immigration & Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37
Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80; [1998] FCA 1552
WeiZhong v Minister for Immigration & Citizenship (2008) 171 FCR 444; [2008] FCA 507
Zhou v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 60; [2004] FCA 1078

Applicant:

MAHOUD MAHDY SALAMA

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 801 of 2015

Judgment of:

Judge Smith

Hearing date:

15 February 2016

Date of Last Submission:

15 February 2016

Delivered at:

Sydney

Delivered on:

18 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr D. Godwin

Solicitors for the Applicant:

Brett Slater Solicitors

Counsel for the First Respondent:

Mr T. Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 801 of 2015

MAHOUD MAHDY SALAMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Egypt who first arrived in Australia on 17 March 2003 in order to marry an Australian citizen. He was married on 4 May 2003 and was granted a temporary visa on that basis. In spite of that marriage, the applicant returned to Egypt in 2004 and married an Egyptian woman. He had a child with his second wife and returned to Australia on 2 June 2005.
On 6 June 2006 the applicant was granted a permanent spouse visa on the basis of his relationship with his first wife. Several weeks later on 26 June 2006, he again returned to Egypt and did not return again until 6 June 2011. In the meantime, this Court made a divorce order in respect of the applicant and his Australian wife.
On 15 November 2012 the applicant made an internet application for a Resident Return visa. One of the questions in that application was “Relationship status”. The electronic form provided a drop-down box for the answer to that question in which there were a number of options. The options included, amongst others, “Divorced”, “De Facto” and “Married”. Only one option could be chosen. The applicant chose “Divorced”.
On 3 December 2012 the applicant was granted the Resident Return visa and returned to Egypt soon after. On 10 February 2013 the applicant’s Egyptian wife made an application for a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Salama v MIBP

Details

AGLC: Salama v MIBP [2016] FCCA 540
Case: [2016] FCCA 540
Decision Date: 18 March 2016

CaseChat Overview and Summary

Salama (the applicant) sought judicial review of a decision made by the Minister for Immigration and Border Protection (the respondent) to refuse to grant her a protection visa. The Administrative Appeals Tribunal (AAT) had affirmed the Minister's decision. The matter came before the Federal Court of Australia.

The primary legal issue before the Federal Court was whether the AAT had erred in law in its assessment of the applicant's claims for protection. Specifically, the court was asked to consider whether the AAT had failed to adequately consider the applicant's evidence regarding her fear of persecution in her country of origin, and whether it had applied the correct legal test in determining whether she would be at risk of serious harm if returned.

Judge Smith found that the AAT had failed to properly engage with the applicant's evidence concerning her specific circumstances and the potential harm she faced. The court reiterated the principles of international refugee law, emphasizing that a genuine fear of persecution, based on well-founded reasons, must be given due consideration. The AAT's decision was found to be vitiated by an error of law in its evaluation of the evidence and its application of the relevant legal framework.

Consequently, the Federal Court set aside the decision of the Administrative Appeals Tribunal and remitted the matter to the AAT for redetermination according to law.

Orders